Does a Primate have a Copyrightable Interest in its “Selfie”?

Recently, the Wikimedia Foundation was asked by British nature photographer David Slater to remove a “selfie” photograph taken by a primate with his camera. The Foundation refused, reasoning that because animals cannot hold a copyrightable interest, the images were in the “public domain”. As a result, Mr. Slater will likely pursue a legal action against the Foundation because the individual who uploaded the photo has not been located. His proposed argument is that the primate served as his assistant, thus affording him the copyright interest in the photos uploaded.

In order to determine whether Slater owns a copyrightable interest in the primate’s “selfie,” it is necessary to first look at the Copyright Act of 1976. Even though the statute itself does not define what an “original work of authorship” is, the Act’s legislative history indicates that although it incorporates the original standard for originality established under the Copyright Act of 1909, it does not include other aspects of ingenuity, novelty, or esthetic merit. Essentially, the legislative history asserts that the 1976 Copyright does not broaden the scope of protection that courts should grant. It merely covers the copyrightable interests of individuals, groups, and other entities. Further, the statute makes no mention of extending this interest to animals or automated machinery.

In this case, the photo was taken during a trip to Indonesia in 2011. However, in controversy are the events leading up to when the picture was taken. Did the primate grab the camera of his own will, against the wishes of Slater, in order to take the “selfie,” or did Slater need to give the camera to the primate in order to capture the image at the angle he desired? The distinction is important because if the facts demonstrate that Slater’s actions were collectively enough evidence to show that the photo was his “original work of authorship” (setting up a tripod with cable release, the settings of the camera, and other aspects such as lighting), then he may have a strong argument under this loose statutory standard. The Foundation will likely prevail if the court determines Slater’s setting up the equipment was only to provide the primate (and others present) with the ability to use the camera in any manner of their choosing, not to specifically take the photo that resulted.

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